Citation Nr: 1704169
Decision Date: 02/10/17 Archive Date: 02/23/17
DOCKET NO. 13-01 804 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
N. Sangster, Associate Counsel
INTRODUCTION
The Veteran had active service from October 1972 to October 1974.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Detroit, Michigan.
In February 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript is in the claims file. Thereafter, in April 2014, the Board remanded this appeal for further development.
FINDING OF FACT
The probative evidence of record shows that the Veteran's bilateral hearing loss disability is not etiologically related to active duty.
CONCLUSION OF LAW
The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. VA's Duties to Notify and Assist
VA's duty to notify was satisfied by way of the Veteran's November 2011 fully developed claim. See VA Form 21-526EZ; 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
The Veteran's service treatment records (STRs), VA and available private medical treatment records, as well as lay statements, have been obtained and associated with the claims file prior to and subsequent to the April 2014 Board remand directives. In addition, the Veteran was afforded the appropriate VA examination in October 2014, pursuant to the Board's April 2014 remand directives. The Board has determined that the VA examination is are adequate because it was factually informed, medically competent and responsive to the issue on appeal. 38 C.F.R. § 4.2 (2015). In light of the above, there was compliance, certainly substantial compliance, with the April 2014 remand directives, in turn allowing the Board to proceed with its adjudication of this claim. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999).
II. Service Connection
The Veteran believes that his hearing disability is a result of his active service. Specifically, he claims he was exposed to acoustic trauma from frequent noises of jet engines. The Veteran also asserts that he was not administered a hearing evaluation at the time of his discharge and that his vocation since the military was not in a job with significant noise exposure. He states that he first notice hearing loss symptoms after service in the 1990s and was treated for hearing loss at that time. He testified that he did not notice hearing loss symptoms during service or at the time of his separation from service; but that his wife complained that he turned up the volume too loud on the television a few years after his separation from service, although he could say for sure when.
In order to establish entitlement to service connection for a claimed disability, the facts must demonstrate that a disease or an injury resulting in current disability was incurred in active military service in the line of duty or, if pre-existing service, was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303 (a) (2015). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2015).
Service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the Veteran has the alleged disability or, at the very least, indicating she has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).
Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or is legitimately questionable. 38 C.F.R. § 3.303 (b) (2015). This alternative means of linking the currently-claimed condition to service is only available if the condition being claimed is one of those specifically identified in 38 C.F.R. § 3.309 (a) as chronic, per se. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
Sensorineural hearing loss also is eligible for presumptive service connection - as an organic disease of the nervous system - if shown to have manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of the Veteran's separation from service. However, this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).
Further concerning claims for hearing loss, the threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993) (citing Current Medical Diagnosis & Treatment, Stephen A. Schroeder, et. al. eds., at 110-11 (1988)). But impaired hearing only will be considered to be an actual ratable disability when the auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
That said, it also deserves pointing out, however, that the Court has held that § 3.385 does not preclude service connection for a current hearing loss disability where hearing was within normal audiometric testing limits at time of separation from service. See Hensley, 5 Vet. App. at 159. The Court explained that, when audiometric test results do not meet the regularity requirements for establishing a "disability" at the time of the Veteran's separation from service, he nevertheless may establish his entitlement to service connection for a current hearing loss disability by submitting competent and credible evidence showing the current disability is causally related to his service, as opposed to other ("intercurrent") causes. Id., at 160. See also Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).
The Veteran's STRs show that he had several audiological evaluations. His July 1972 entrance examination reflects that reported puretone thresholds were: 0 decibels at 500 Hz, 1000 Hz and 2000 Hz, and 20 decibels in the 4000 Hz in the right ear; and 5 decibels at 500 HZ 0 decibels at the 1000 Hz and 2000 Hz, and 30 decibels at 4000 Hz in the left ear. Hearing acuity was not tested at 3000 Hz. In addition, at a July 1973 audiological evaluation, reported puretone thresholds were: were 5 decibels at 500 Hz, 0 decibels in the 1000 Hz and 2000 Hz, and 20 decibels in the 4000 Hz in the right ear; and 10 decibels at 500 Hz, 0 decibels at the 1000 Hz, 5 decibels at 2000 Hz, and 30 decibels at 4000 Hz in the left ear. Hearing acuity was not tested at 3000 Hz. A January 1974 audiological evolution shows reported puretone thresholds were: 5 decibels at 500 Hz, 0 decibels in the 1000 Hz and 2000 Hz, and 20 decibels in the 4000 Hz in the right ear; and 10 decibels at 500 Hz, 1000 Hz and 2000 Hz, and 25 decibels at 4000 Hz in the left ear. Hearing acuity was not tested at 3000 Hz. At his June 1974 separation, reported puretone thresholds were 15 decibels at 500 Hz, 0 decibels in the 1000 Hz and 2000 Hz, and 25 decibels in the 4000 Hz in the right ear; and 5 decibels at 500 Hz, 0 decibels at the 1000 Hz and 2000 Hz, and 30 decibels at 4000 Hz in the left ear. Hearing acuity was not tested at 3000 Hz.
Hearing loss was not shown during service, and the Veteran has not asserted that he experienced hearing loss symptoms during and continuing since service. However, the Veteran was exposed to noise during service associated with his duties as an airplane mechanic and while working on the flight line. His in-service noise exposure is established based on his statements and the circumstances of his service. See 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.304 (2016).
While in-service noise exposure is established, the preponderance of the evidence weighs against a relationship between the Veteran's hearing loss and noise exposure or acoustic trauma during service.
The Veteran was provided a VA examination in February 2012. See November 2001 medical record from Dr. H.J.B. and December 2001 medical record from Northern Michigan Hospital. The February 2012 VA examiner diagnosed the Veteran with bilateral sensorineural hearing loss but opined that it was not related to his active service because there were no threshold shifts noted in the Veteran's STRs. However, as indicated above, the Board remanded this issue for further development, including obtaining additional records and an addendum medical opinion because the examiner did not acknowledge the 15 and 5 decibel threshold shifts in the Veteran's right ear (from 0 to 15 at 500, and from 20 to 25 at 4000) when comparing his July 1972 entrance examination and his June 1974 separation examination.
Resultantly, the Veteran had another VA examination in October 2014. The examiner confirmed that the Veteran had bilateral sensorineural hearing loss but also opined that it was not related to or caused by any incident or noise exposure in service. In reaching this conclusion, she observed that the Veteran's July 1972 enlistment audiogram revealed bilaterally normal hearing sensitivity as did his June 1974 separation audiogram with no significant threshold shifts (15 decibels or greater) noted, except at 500 Hz in the right ear, which she explained was not a frequency area associated with noise exposure but more often a reflection of temporary mild middle ear or sinus issues. The examiner stated that this finding would indicate that there was no significant loss of hearing while the Veteran was in the military. Moreover, she observed that two other audiograms completed as part of flight physicals also showed no significant shift in hearing levels while in the military. The examiner further commented that there were no Veteran complaints of hearing loss noted in his STRs. She stated that since there was no hearing loss when the Veteran was separated from the military, it would seem likely that his current hearing loss would be caused by something other than military noise exposure, such as occupational noise, noting he worked in a shop and was later a truck driver for 25 years, recreational noise (motorcycles and woodworking), and/or progressive hearing loss secondary to the normal aging process. She also cited to the Institute of Medicine's research showing that there was insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure. See "Noise and Military Service-Implications for Hearing Loss and Tinnitus," Institute of Medicine, National Academy of Sciences, 2006. The examiner therefore concluded that the Veteran's current bilateral hearing loss was less than likely caused by or a result of an event in military service since there was no significant shift in hearing from enlistment to separation.
The medical evidence in this case, especially the October 2014 VA examination report, is unfavorable to the Veteran's claim for service connection for a bilateral hearing loss disability in terms of attributing it to his military service. The October 2014 VA examiner's opinion is highly probative, as it represents the informed conclusion of an audiologist who considered the Veteran's in-service noise exposure and the audiometric findings at entrance and separation, including puretone threshold shifts. Moreover, it is supported by a clear explanation that is consistent with the credible evidence of record. Therefore, it carries a lot of weight in the Board's determination.
The Veteran's unsupported opinion that his hearing loss was caused by in-service noise exposure is not competent evidence and thus lacks probative value. Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). In this regard, lay testimony is competent as to matters capable of lay observation or within a person's first-hand experience, and may be competent evidence with respect to both the diagnosis of a medical condition and its etiology or cause. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). However, lay testimony is not competent with respect to determinations that cannot be made based on lay observation alone due to their medical or scientific complexity. See Jandreau, 492 F. at 1376-77; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007).
The determination in this case is medically complex, since whether noise exposure or acoustic trauma has caused damage to the internal ear structure or auditory system, with no hearing loss until years later due to the gradual nature of the deterioration or some other process resulting in a delayed onset, cannot be perceived through the senses alone. (As discussed above, there is no evidence of hearing loss during service and the Veteran has stated that he first noticed hearing loss symptoms in the 1990s). Therefore, competent medical evidence is required. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; Layno, 6 Vet. App. at 469 (holding that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Accordingly, because the Veteran is a lay person in the field of medicine, his unsupported opinion is not competent evidence on this issue, and thus lacks probative value. See Layno, 6 Vet. App. at 470-71.
In any event, the Veteran's lay opinion is outweighed by the October 2014 VA medical opinion discussed above, which was rendered by an audiologist who provided a specific explanation based on the Veteran's medical history for the conclusion reached. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board has the 'authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence'). By contrast, the Veteran does not have a medical background, and his opinion is not supported by an adequate rationale.
Presumptive service connection for hearing loss as a chronic disease is also not warranted. See Walker, 708 F.3d at 1338. Because hearing loss was not noted during service (let alone shown to be chronic), and as the STR's rather show normal hearing, service connection may not be established for hearing loss as a chronic disease based on a chronicity in service or a continuity of symptomatology after service. See 38 C.F.R. § 3.303(b); Fountain, 27 Vet. App. at 263-64. Moreover, the evidence does not show that hearing loss manifested to a compensable degree within one year of service separation. See 38 C.F.R. §§ 3.307(a), 3.309(a).
The Board is grateful to the Veteran for his honorable service, and regrets that it cannot render a favorable decision in this matter. The preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for hearing loss is denied. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Entitlement to service connection for bilateral hearing loss is denied.
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P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs